D. Mukhopadhyay vs Delhi State Civil Supplies ...
1994 Latest Caselaw 563 Del

JUDGMENT

Jaspal Singh, J.

(1) Here is yet another writ petition seeking the quashing of a Seniority List. The facts run as under.

(2) The petitioner was appointed as Assistant Manager ( Marketing) on September 1, 1984 in the scale of Rs. 650-1200 as a directly recruited candidate. At the time of his appointment, respondents 2 and 3 were already working with respondent No.1 Corporation having joined it earlier on deputation. It was only vide order dated February 14, 1986 that respondents No.2 & 3 were absorbed permanently with effect from January 16, 1986. On June 1, 1988, the respondent No.1 Corporation issued a Tentative Seniority List of Assistant Managers in which respondents No. 2 & 3 were shown as senior to the petitioner. It is this which has led the petitioner to file this writ petition.

(3) As per the petitioner as he was directly recruited in the pay scale of 650-1200 on September 1, 1984 and as respondents No.2 & 3 were permanently absorbed with effect from January 16, 1986 and further as respondent No.2 had been working on a much lower scale of pay, there was no justification for .placing them senior to him.

(4) It appears from the record that at its inception the respondent Corporation filled up, the post of Assistant Manager by having persons on. deputation in the pay scale of 550-900 which, however, was revised to 650-1200 with effect from June 14, 1982. Respondent No.2 joined the respondent Corporation with effect from January 16, 1982 against the post of Shop Manager/ Sales Officer in the pen scale of Rs.425-700, However, since that post of Shop Manager/Sales Officer was a lower post, he made a representation and consequently was appointed Assistant Manager and was treated to have been so appointed with effect from April 2, 1982. The scale of pay of Assistant Manager at that time was Rs.550-900. It further appears that as respondent No.2 was already drawing the basic pay of Rs.750.00 per month in his parent scale of pay of Rs.550-750. he did not opt for the scale of pay of Rs.550-900. Later, on his having so opted, respondent No.2 was permanently absorbed in the respondent Corporation as Assistant Manager in the scale of Rs. 650-1200 with effect from January 16, 1986.

(5) As far as respondent No.3 is concerned he was appointed as Assistant Manager (.Marketing) on deputation basis with effect from March 23, 1984 in the by then revised scale of Rs. 650-1200. He was absorbed in the respondent Corporation on permanent basis with effect from February 14. 1986.

(6) It was contended by the learned counsel for the petitioner that since the petitioner was appointed Assistant Manager with effect from September 1, 1984 and respondents No.2 and 3 who were on deputation were permanently absorbed in the respondent Corporation only with effect from January 16, 1986, therefore, the seniority of respondents No.2 & 3 could be counted only from the date of their final absorption and as it took place subsequent to the appointment of the petitioner, they could not be placed senior to him. In support my attention was drawn to the Department of Personnel and Training, O.M. No. 20020/7/80- Est.(D), dated the 29th May, 1986 and more particularly to the following: "In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for 'Transfer on deputation/Transfer") his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. Ii he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department. such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation, or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, -whichever is later.

(7) However, on the other hand the respondents drew my attention to the Delhi State Civil Supplies Corporation Ltd. (Recruitment and Promotion) Rules, 1985 (hereinafter referred to as Rules) and took the position that as per the said Rules seniority was to be taken from the date of deputation.

(8) The Rules came into force with effect from July 1, 1985 and apply to "all existing and future employees" appointed to the respondent Corporation. Rule 18 deals with seniority and for our purposes it is sub-rule (iii) which is relevant. It D. Mukhopadhay "18.SENIORITY: Seniority of employees in such grade in a cadre shall be determined on the following principles namely :- iii) The seniority of Employees on deputation on their absorption vis-a-vis other persons will be determined in accordance with the instructions on the subjects from time to time by the Bureau of public Enterprises."

As rule 18 (iii) of the Rules speaks of fixation of seniority in accordance with instructions on the subject by the Bureau of Public Enterprise, the said instructions, may also be noticed. They are to the effect that : "THE seniority of officers opting for service in An Enterprise should be fixed in a particular grade with effect from the date of their original deputation to that grade and not from the date of exercising their option, regardless of the terms offered to them."

(10) However, as per the learned counsel for the petitioner, the benefit of the Instructions issued by the Bureau of Public Enterprise as reproduced by me above could not be availed of by respondent No.2 Atam Parkash Ahuja as he was all along working in a lower scale of pay of Rs.550-900 and not in the higher scale of 650-1200 as enjoyed by the petitioner and even by respondent No.3. In other words the argument was that even if it be assumed that Instructions issued by the bureau of Public Enterprise were applicable, the "grade" of respondent No.2 being lower than that of the petitioner he could not be placed senior. He impressed upon me that the word "grade" meant only scale of pay.

(11) Since the Rules framed by the respondent Corporation speak of fixation of seniority in accordance with the instructions issued on the point by the Bureau of Public Enterprise, I have no manner of doubt that for purposes of fixation of seniority we have to bank upon and be guided by the said instructions. However, as would be borne out from above, this does not offer the solution on the platter.

(12) As per the instructions of the Bureau, and as already noticed above, seniority is to be fixed "in a particular grade" only with effect from the date of original deputation "to that grade". What does this word "grade" mean? Is it to mean only the scale of pay in the context of the Rules of the respondent Corporation or something else? And if so, what?

(13) The learned Counsel for the petitioner drew itty attention to two judgments of the Supreme Court in support of the interpretation placed by him on the word grade". The first is Hari Nandan Sharan Bhatnagar Vs. S.N.Dixit, while the second is reported as B. Varadha Rao v. State of Karnataka & Anr. 1982 (2) S.I.J.101.

(14) In Hari Nandan's case (supra) the relevant Rule which came up for consideration was as follows: "RECRUITMENT to the post of the Superintendent shall be made by promotion from the grade of superior service assistants in the Council Department. While due regard will be paid to seniority, no assistant will be appointed to the post of Superintendent unless he is considered qualified in all respects to perform the duties of a Superintendent and full authority will be reserved to appoint the assistant most fitted for the post. If, however, no suitable assistant is available for promotion from amongst the grade of superior service assistants in the Council. Department, recruitment may, as a special case, be made from outside."

The Supreme Court while interpreting the said rule observed : "THE Speaker had to take into consideration the claims of Senior Upper Division Assistants but under the Rules his choice was not limited to the Upper Division Assistants, He could -consider the claims of others who were in the same grade, that is to say, enjoy the same scales of pay and pick out the person considered by him to be qualified in all respects to perform the duties of a Superintendent. All officials of the Legislative Assembly Secretariat holding posts in the same scale of pay as Upper Division Assistants were eligible for promotion to the post of Superintendent"

The second judgment in B. Varadha Rao's case (supra) was relied upon to show that as respondent No.2 was in a lower scale of pay the mere fact that he was designated as an Assistant Manager would be of no consequence as the mere continuance of the nomenclature of the post would not have the effect of making it equivalent to the post occupied by the petitioner which was in a higher scale of pay.

(15) "GRADE" is not a term of art, but a word of broad meaning. It does not merely refer to a scale of pay nor to a greater or less excellence. The New Webster's Dictionary And Thesaurus defines it as a degree or step in rank, quality or value .... a class of persons or things of the same rank, quality etc." The Supreme Court itself makes it clear that the word "grade" has "various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre." (A. K. Subramanu & Others Vs. Union of India & others ) If that be so, what does the word "grade" imply as far .as the Rules in this case are concerned? However, before I proceed to answer it, I may mention that as far as my understanding of the judgment in Hari Nandan's case goes, the relevant Rule in that case had itself clearly made a distinction between rank and scale of pay as would be borne out from the words "from the grade of superior service Assistants..." and "from amongst the grade of superior service assistants". It was in the context of the relevant Rule that the word "grade" was taken to refer to scale of pay and not to a particular rank in the hierarchy occupied by the official concerned. However, if we go through the Rule applicable, in,the case before me, it would go to show that the word "grade" employed therein does not involve or depend upon the scale of pay. By the word "grade" the Rule refers, in my opinion, to a class of employment and therefore to a particular rank in the hierarchy occupied by the officers. This to my mind, is amplified not only by the words: "the seniority of officers opting for service in an Enterprise should be fixed in a particular grade.... from the date of their original deputation to that grade...." but also by the words 'regardless of the terms offered to them". The word "terms", to my mind, would include a sum or fee or price offered.

(16) If the word "grade" in the context of the Rule means what I feel it does, the whole edifice raised by the petitioner falls to the ground.

(17) Let us peep through the matter from another angle.

(18) Though respondent No.2 Was initially appointed as Assistant Manager in the pay scale of 550-900, it is significant to note that the scale of pay of Assistant Managers was revised to 650-1200 with effect from June 14, 1982. It is true. that respondent No.2 continued drawing salary on the basis of his parent scale till his final absorption in the respondent Corporation but this was for obvious reason and the reason Was that he was monetarily more benefitted that way, and it was not disputed that that way he had all along been drawing more salary than the petitioner. I do not think respondent No.2 can be made to suffer only because he did not opt for the scale of pay offered by the respondent Corporation, nor, to my mind, can he be deprived of his due seniority on that score.

(19) It was contended by the learned counsel for the petitioner that in fact the respondent Corporation had two grades of Assistant Managers. Assistant Manager Grade I in the pay scale of 650-1200 and Assistant Manager Grade Ii in the pay scale of 550-900 and that respondent No.2 was an Assistant Manager Grade Ii and that this being the position he could not rank senior to the petitioner who had all along been Assistant Manager Grade 1. In support my attention was drawn to an order dated February 14, 1986 issued by the respondent Corporation which runs as under : "On having opted for their permanent absorption in this corporation and on receipt of the "No Objection" from their parent departments, the following officers/officials presently working on deputation basis are hereby permanently absorbed in this Corporation against the post noted against each: S. No. Name Post against which absorbed I. Shri Krishan Kumar Shri A.P.Ahuja Asstt. Manager (Grade-I) (Rs.650-1200) Assistant Manager (Grade-II) (Rs.550-900) 3. Shri Amir Singh Assistant (Grade-I) (Rs.425-700) The absorption of Shri A.P.Ahuja is to take effect w.e.f. 16.1.86, (S.C.LAHKAR) Chairman-cum-Managing Director; Dscsc Ltd., No.F.I(543)/85-DSCSC/15150-60 dated 14.2.86"

(20) Undoubtedly, on the face of it the order of February 14, 1986 does lend substance to the contention but. unfortunately for the petitioner, the orders issued subsequently by the respondent Corporation present a different picture. The writ petition itself refers to the subsequent order of April 29, 1986 which was in following terms :- "In partial modification of this office order No.F.I(543)/85- DSCSC/15150-60 dated 14.2.86. Shri A.P.Ahuja is hereby absorbed as Assistant Manager Grade-I in the pay scale of Rs.650-1200 w.e.f. 16.1.86 instead of Assistant Manager (Grade-II) in the scale of Rs.550-900. The orders with regard to the appointment of Shri A.P. Ahu)a as Assistant Manager (Grade-I) made vide Order No. F.l(543)/85-15161-68 dated 14.2.86 are cancelled from the date of issue. (S.D.LAHKAR) Chairman Cum Managing Director; Dscsc Ltd." I may also hasten to mention that in the Counter filed by the respondent Corporation it has been made clear that the order of February 14, 1986 had wrongly shown respondent No.2 as Assistant Manager (Grade II) in the pay scale of 550-900 and that Realizing the mistake, the respondent Corporation had suo motu cancelled it by its subsequent order of April 29, 1986. What is equally significant to note is that before the Rules came into force there was no classification of the post of Assistant Manager into Grade I and Grade Ii and for that reason also it cannot be said that respondent No.2 had been appointed as Assistant Manager Grade II.

(21) For the reasons recorded above, I find no fault with the order fixing the seniority of the petitioner and respondents No.2 and 3.

(22) A word before the curtain is finally dropped. After the conclusion of the arguments, and of course, before this order could be announced, the petitioner through an application placed on record some more documents. Though I heard the learned counsel for the petitioner with regard to those documents, I remain unmoved. The documents do not sway my judgment.

(23) The writ petition is consequently dismissed but with no order as to costs.